Part 25

Here is the whole article, in its final form. It will be observed that the third section, immediately following the triad section of compacts, contains two specific powers,--one with regard to new States, and the other with regard to the public Territory. These are naturally grouped together, while the fourth section of this same article, which is distinct in character, is placed by itself. In the absence of all specific information, reason alone can determine why this arrangement was made. But the conclusion is obvious, that, in the view of the Committee and of the Convention, each of these sections differs from the others. The first contains a compact with a grant of power. The second contains provisions, all of which are simple compacts, and two of which were confessedly simple compacts in the old Articles of Confederation, from which, unchanged in character, they were borrowed. The third is a twofold grant of power to Congress, without any compact. The fourth is neither power nor compact merely, nor both united, but a solemn injunction upon the National Government to perform an important duty.

The framers of the Constitution were wise and careful, having a reason for what they did, and understanding the language they employed. They did not, after discussion, incorporate into their work any superfluous provision; nor did they without design adopt the peculiar arrangement in which it appears. Adding to the record compact an express grant of power, they testified not only their desire for such power in Congress, but their conviction that without such express grant it would not exist. But if express grant was necessary in this case, it was equally necessary in all the other cases. _Expressum facit cessare tacitum._ Especially, in view of its odious character, was it necessary in the case of fugitives from service. Abstaining from any such grant, and then grouping the bare compact with other similar compacts, separate from every grant of power, they testified their purpose most significantly. Not only do they decline all addition to the compact of any such power, but, to render misapprehension impossible, to make assurance doubly sure, to exclude any contrary conclusion, they punctiliously arrange the clauses, on the principle of _noscitur a sociis_, so as to distinguish all the grants of power, but especially to make the new grant of power, in the case of public records, stand forth in the front by itself, severed from the naked compacts with which it was originally associated.

Thus the proceedings of the Convention show that the founders understood the necessity of _powers_ in certain cases, and, on consideration, jealously granted them. A closing example will strengthen the argument. Congress is expressly empowered "_to establish an uniform rule of_ Naturalization, and _uniform laws_ on the subject of Bankruptcies, _throughout the United States_." Without this provision these two subjects would have fallen within the control of the States, leaving the Nation powerless _to establish a uniform rule_ thereupon. Now, instead of the existing compact on fugitives from service, it would have been easy, had any such desire prevailed, to add this case to the clause on Naturalization and Bankruptcies, and to empower Congress TO ESTABLISH A UNIFORM RULE FOR THE SURRENDER OF FUGITIVES FROM SERVICE THROUGHOUT THE UNITED STATES. Then, of course, whenever Congress undertook to exercise the power, all State control of the subject would be superseded. The National Government would have been constituted, like Nimrod, the mighty Hunter, with power to gather the huntsmen, to halloo the pack, and to direct the chase of men, ranging at will, without regard to boundaries or jurisdictions, throughout all the States. But no person in the Convention, not one of the reckless partisans of Slavery, was so audacious as to make this proposition. Had it been distinctly made, it would have been as distinctly denied.

The fact that the provision on this subject was adopted _unanimously_, while showing the little importance attached to it _in the shape it finally assumed_, testifies also that it could not have been regarded _as a source of National power for Slavery_. It will be remembered that among the members of the Convention were Gouverneur Morris, who had said that he "NEVER would concur in upholding domestic slavery,"--Elbridge Gerry, who thought we "ought to be careful NOT _to give any sanction to it_,"--Roger Sherman, who "was OPPOSED to a tax on slaves imported, _because it implied they were property_,"--James Madison, who "thought it WRONG to admit in the Constitution the idea that there could be property in men,"--and Benjamin Franklin, who likened American slaveholders to Algerine corsairs. In the face of these unequivocal judgments, it is absurd to suppose that these eminent citizens consented _unanimously_ to any provision by which the National Government, the creature of their hands, dedicated to Freedom, could become the most offensive agent of Slavery.

Thus much for the evidence from the history of the Convention. But the _true principles of our Political System_ are in harmony with this conclusion of history; and here let me say a word of State Rights.

It was the purpose of our fathers to create a National Government, and to endow it with adequate powers. They had known the perils of imbecility, discord, and confusion, protracted through the uncertain days of the Confederation, and they desired a government which should be a true bond of Union and an efficient organ of national interests at home and abroad. But while fashioning this agency, they fully recognized the governments of the States. To the Nation were delegated high powers, essential to the national interests, but specific in character and limited in number. To the States and to the people were reserved the powers, general in character and unlimited in number, not delegated to the Nation or prohibited to the States.

The integrity of our Political System depends upon harmony in the operations of the Nation and of the States. While the Nation within its wide orbit is supreme, the States move with equal supremacy in their own. But, from the necessity of the case, the supremacy of each in its proper place excludes the other. The Nation cannot exercise rights reserved to the States, nor can the States interfere with the powers of the Nation. Any such action on either side is a usurpation. These principles were distinctly declared by Mr. Jefferson in 1798, in words often adopted since, and which must find acceptance from all parties.

"That the several States composing the United States of America are not united on the principle of unlimited submission to their General Government; but that by a compact, under the style and title of a Constitution for the United States and of Amendments thereto, they constituted a General Government for special purposes, _delegated to that Government certain definite powers_, reserving, each State to itself, the residuary mass of right to their own self-government; and that _whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force_."[169]

[169] Kentucky Resolutions of 1798: Jefferson's Writings, Vol. IX. p. 464. See also Elliot's Debates, Vol. IV., Appendix, p. 380.

I have already amply shown to-day that Slavery is in no respect national,--that it is not within the sphere of national activity,--that it has no "positive" support in the Constitution,--and that any interpretation inconsistent with this principle would be abhorrent to the sentiments of its founders. Slavery is a local institution, peculiar to the States, and under the guardianship of State Rights. It is impossible, without violence to the spirit and letter of the Constitution, to claim for Congress any power to legislate either for its abolition in the States or its support anywhere. _Non-Intervention_ is the rule prescribed to the Nation. Regarding the question in its more general aspects only, and putting aside, for the moment, the perfect evidence from the records of the Convention, it is palpable that there is no _national fountain_ out of which the existing Slave Act can possibly spring.

But this Act is not only an unwarrantable assumption of power by the Nation, it is also an infraction of rights reserved to the States. Everywhere within their borders the States are the peculiar guardians of _personal liberty_. By Jury and Habeas Corpus to save the citizen harmless against all assault is among their duties and rights. To his State the citizen, when oppressed, may appeal; nor should he find that appeal denied. But this Act despoils him of rights, and despoils his State of all power to protect him. It subjects him to the wretched chance of false oaths, forged papers, and facile commissioners, and takes from him every safeguard. Now, if the slaveholder has a right to be secure _at home_ in the enjoyment of _Slavery_, so also has the freeman of the North--and every person there is presumed to be a freeman--an equal right to be secure _at home_ in the enjoyment of _Freedom_. The same principle of State Eights by which Slavery is protected in the Slave States throws an impenetrable shield over Freedom in the Free States. And here, let me say, is the only security for Slavery in the Slave States, as for Freedom in the Free States. In the present fatal overthrow of State Rights you teach a lesson which may return to plague the teacher. Compelling the National Government to stretch its Briarean arms into the Free States for the sake of Slavery, you show openly how it may stretch these same hundred giant arms into the Slave States for the sake of Freedom. This lesson was not taught by our fathers.

Here I end this branch of the question. The true principles of our Political System, the history of the National Convention, the natural interpretation of the Constitution, all teach that this Act is a usurpation by Congress of powers that do not belong to it, and an infraction of rights secured to the States. It is a sword, whose handle is at the National Capital, and whose point is everywhere in the States. A weapon so terrible to Personal Liberty the Nation has no power to grasp.

* * * * *

(2.) _And now of the denial of Trial by Jury._

Admitting, for the moment, that Congress is intrusted with power over this subject, which truth disowns, still the Act is again radically unconstitutional from its denial of Trial by Jury in a question of Personal Liberty and a suit at Common Law. Since on the one side there is a claim of property, and on the other of liberty, both property and liberty are involved in the issue. To this claim on either side is attached Trial by Jury.

To me, Sir, regarding this matter in the light of the Common Law and in the blaze of free institutions, it has always seemed impossible to arrive at any other conclusion. If the language of the Constitution were open to doubt, which it is not, still all the presumptions of law, all the leanings to Freedom, all the suggestions of justice, plead angel-tongued for this right. Nobody doubts that Congress, if it legislates on this matter, _may_ allow a Trial by Jury. But if it _may_, so overwhelming is the claim of justice, it MUST. Beyond this, however, the question is determined by the precise letter of the Constitution.

Several expressions in the provision for the surrender of fugitives from service show the essential character of the proceedings. In the first place, the person must be, not merely _charged_, as in the case of fugitives from justice, but actually _held to service_ in the State from which he escaped. In the second place, he must "be delivered up on claim of the party to whom such service or labor may be _due_." These two facts, that he was _held_ to service, and that his service was _due_ to his claimant, are directly placed in issue, and must be proved. Two necessary incidents of the delivery may also be observed. First, it is made in the State where the fugitive is found; and, secondly, it restores to the claimant complete control over the person of the fugitive. From these circumstances it is evident that the proceedings cannot be regarded, in any just sense, as preliminary, or ancillary to some future formal trial, but as complete in themselves, final and conclusive.

These proceedings determine on the one side the question of Property, and on the other the sacred question of Personal Liberty in its most transcendent form,--Liberty not merely for a day or a year, but for life, and the Liberty of generations that shall come after, so long as Slavery endures. To these questions the Constitution, by two specific provisions, attaches Trial by Jury. One is the familiar clause, already adduced: "No _person_ shall be deprived of life, _liberty_, or property, _without due process of law_,"--that is, without due proceeding at law, with Trial by Jury. Not stopping to dwell on this, I press at once to the other provision, which is still more express: "In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of Trial by Jury shall be preserved." This clause, which does not appear in the Constitution as first adopted, was suggested by the very spirit of Freedom. At the close of the National Convention, Elbridge Gerry refused to sign the Constitution because, among other things, it established "a tribunal _without juries_, a Star Chamber as to civil cases."[170] Many united in his opposition, and on the recommendation of the First Congress this additional safeguard was adopted as an amendment.

[170] Madison's Debates, Sept. 15, 1787.

Now, regarding the question as one of Property, or of Personal Liberty, in either alternative the Trial by Jury is secured. For this position authority is ample. In the debate on the Fugitive Slave Bill of 1817-18, a Senator from South Carolina, Mr. Smith, anxious for the asserted right of property, objected, on this very floor, to a reference of the question, under the writ of Habeas Corpus, to a judge without a jury. Speaking solely for Property, these were his words.

"This would give a judge the sole power of deciding _the right of property the master claims in his slave, instead of trying that right by a jury, as prescribed by the Constitution_. He would be judge of matters of law and matters of fact, clothed with all the powers of a jury as well as the powers of a court. Such a principle is unknown in your system of jurisprudence. _Your Constitution has forbid it._ It preserves the right of Trial by Jury in all cases where the value in controversy exceeds twenty dollars."[171]

[171] Annals of Congress, 15th Cong. 1st Sess., March 6, 1818, col. 232.

But this provision has been repeatedly discussed by the Supreme Court, so that its meaning is not open to doubt. Three conditions are necessary: _first_, the proceeding must be "a suit"; _secondly_, "at Common Law"; and, _thirdly_, "where the value in controversy exceeds twenty dollars." In every such case "the right of Trial by Jury _shall_ be preserved." Judgments of the Supreme Court cover each of these points.

_First._ In the case of _Cohens_ v. _Virginia_ (6 Wheaton, 407), the Court say: "What is a _suit_? We understand it to be the prosecution or pursuit of some _claim_, demand, or request." Of course, then, the "claim" for a fugitive must be a "suit."

_Secondly._ In the case of _Parsons_ v. _Bedford et al._ (3 Peters, 447), while considering this very clause, the Court say: "By _Common Law_ the framers of the Constitution meant ... not merely suits which the Common Law recognized among its old and settled proceedings, but suits in which _legal rights_ were to be ascertained and determined.... In a just sense, the Amendment may well be construed to embrace all suits which are not of Equity and Admiralty jurisdiction, _whatever may be the peculiar form which they may assume to settle legal rights_." Now, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are called legal rights, it must be a "suit at Common Law."

_Thirdly._ In the case of _Lee_ v. _Lee_ (8 Peters, 44), on a question whether "the value in controversy" was "one thousand dollars or upwards," it was objected, that the appellants, who were petitioners for Freedom, were not of the value of one thousand dollars. But the Court said: "The matter in dispute is the Freedom of the petitioners.... _This is not susceptible of a pecuniary valuation...._ We entertain no doubt of the jurisdiction of the Court."[172] Of course, then, since Liberty is above price, the claim to any fugitive always and necessarily presumes that "the value in controversy exceeds twenty dollars."

[172] The rule of the Roman law was explicit: _Neque humanum fuerit ob rei pecuniariæ quæstlonem libertati moram fieri._ This is a text of Ulpian (Digestorum Lib. XL. Tit. V., _De Fideicommissariis Libertartibus_, 37). In the same spirit is the mediæval verse,--

"Non bene pro toto libertas venditur auro."

By these successive steps, sustained by judgments of the highest tribunal, it appears, as in a diagram, that the right of Trial by Jury is secured to the fugitive from service.

This conclusion needs no additional authority; but it receives curious illustration from the ancient records of the Common Law, so familiar and dear to the framers of the Constitution. It is said by Mr. Burke, in his magnificent speech on Conciliation with America, that "nearly as many of Blackstone's Commentaries were sold in America as in England,"[173] carrying thither the knowledge of those vital principles of Freedom which were the boast of the British Constitution. Thus imbued, the earliest Continental Congress, in 1774, declared, "That the respective Colonies are entitled to the Common Law of England, and more especially to the great and inestimable privilege of being tried by their Peers of the Vicinage, according to the course of that law."[174] Amidst the troubles which heralded the Revolution, the Common Law was claimed as a birthright.

[173] Works (ed. 1801), Vol. III. p. 55.

[174] Declaration of Rights, October 14, 1774: Journals of Congress, Vol. I. p. 29.

Now, although the Common Law may not be approached as a source of jurisdiction under the National Constitution,--and on this interesting topic I forbear to dwell,--_it is clear that it may be employed to determine the meaning of technical terms in the Constitution borrowed from this law_. This, indeed, is expressly sanctioned by Mr. Madison, in his celebrated Report of 1799, while limiting the extent to which the Common Law may be employed. Thus by this law we learn the nature of _Trial by Jury_, which, though secured, is not described by the Constitution; also what are _Attainder_, _Habeas Corpus_, and _Impeachment_, all technical terms of the Constitution, borrowed from the Common Law. By this law, and its associate Chancery, we learn what are _cases in law and equity_ to which the judicial power of the United States is extended. These instances I adduce merely for example. Also in the same way we learn what are _suits at Common Law_.

Now, on principle and authority, _a claim for the delivery of a fugitive slave is a suit at Common Law_, and is embraced naturally and necessarily in this class of judicial proceedings. This proposition can be placed beyond question. And here, especially, let me ask the attention of all learned in the law. On this point, as on every other in this argument, I challenge inquiry and answer.

History painfully records, that, during the early days of the Common Law, and down even to a late period, a system of Slavery existed in England, known under the name of _villenage_. The slave was generally called a _villein_, though in the original Latin forms of judicial proceedings he was termed _nativus_, implying slavery by birth. The incidents of this condition are minutely described, and also the mutual remedies of master and slave, all of which were regulated by the Common Law. Slaves sometimes then, as now, _escaped_ from their masters. The claim for them, after such _escape_, was prosecuted by a "suit at Common Law," to which, as to every suit at Common Law, Trial by Jury was necessarily attached. Blackstone, in his Commentaries, in words which must have been known to all the lawyers of the Convention, said of _villeins_: "They could not leave their lord without his permission; _but if they ran away_, or were purloined from him, _might be CLAIMED and recovered by ACTION, like beasts or other chattels_."[175] This very word, "action," of itself implies "a suit at Common Law" with Trial by Jury.

[175] Commentaries, Vol. II. p. 93.

From other sources we learn precisely what the _action_ was. That great expounder of the ancient law, Mr. Hargrave, says, "Our Year Books and Books of Entries are full of the forms used in pleading a title to villeins regardant."[176] Though no longer of practical value in England, they remain as monuments of jurisprudence, and as mementos of a barbarous institution. He thus describes the remedy of the master at Common Law.

"The lord's remedy for a _fugitive villein_ was either by seizure or by suing out a writ of _Nativo Habendo_, or Neifty, as it is sometimes called. If the lord seized, the villein's most effectual mode of recovering liberty was by the writ of _Homine Replegiando_, which had great advantage over the writ of _Habeas Corpus_. In the _Habeas Corpus_ the return cannot be contested by pleading against the truth of it, and consequently on a _Habeas Corpus the question of liberty cannot go to a jury for trial_.... But in the _Homine Replegiando_ it was otherwise.... The plaintiff, ... on the defendant's pleading the villenage, had the same opportunity of contesting it as when impleaded by the lord in a _Nativo Habendo_. If the lord sued out a _Nativo Habendo_, and the villenage was denied, in which case the sheriff could not seize the villein, _the lord was then to enter his plaint in the county court_; and as the sheriff was not allowed to try the question of villenage in his court, the lord could not have any benefit from the writ, without removing the cause by the writ of _Pone_ into the King's Bench or Common Pleas."[177]

[176] Argument in Sommersett's Case: Howell's State Trials, XX. 42.

[177] Ibid., 38, 39, note.

The authority of Mr. Hargrave is sufficient. But I mean to place this matter beyond all cavil. From the Digest of Lord Chief Baron Comyns, which at the adoption of the Constitution was among the classics of our jurisprudence, I derive another description of the remedy.

"If the lord claims an inheritance in his villein, _who flies from his lord against his will_, and lives in a place out of the manor to which he is regardant, the lord shall have a _Nativo Habendo_. And upon such writ, directed to the sheriff, he may seize him who does not deny himself to be a villein. But if the defendant say that he is a freeman, the sheriff cannot seize him, but the lord must remove the writ by _Pone_ before the Justices in Eyre, or in C.B., _where he must count upon it_."[178]

An early writer of peculiar authority, Fitzherbert, in his _Natura Brevium_, on the writs of the Common Law, thus describes these proceedings.

[178] Comyns's Digest: Remedy for a Villein, (C. 1,) _Nativo Habendo_.